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EXHIBIT 10.4
XXXXXXXX PARTNERS
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
July 6, 2000
Childtime Learning Centers, Inc.
00000 X. Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Re: Management and Financial Consulting Services
Gentlemen:
This letter outlines the understanding between Xxxxxxxx Partners ("JP") and
Childtime Learning Centers, Inc., a Michigan corporation (the "Company") of the
objective, tasks, work product and fees for the engagement of JP to provide
management and financial consulting services to the Company.
OBJECTIVE
To provide the Company and its Board of Directors with assistance, as financial
advisor and management consultant, with full authority to work to maximize the
value of the Company for the benefit of its shareholders.
TASKS
The tasks that JP will undertake will include, but are not limited to, the
following activities:
- Participate in meetings with the Board of Directors in order to provide
insight into, as well as contribute to, various aspects of the Company's
operations.
- Exercise executive authority in running the affairs of the Company and
provide direction to, and work with, the Company's president and other
senior officers in connection with the management and operation of the
Company, including approval of all senior executive appointments and
dismissals.
- Assist in identifying opportunities to improve the Company's business and
operations and assist in
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implementing changes.
- Perform such other tasks which the Company and its Board of Directors may
request and which are mutually agreed upon.
In connection with the performance of its tasks and duties under this agreement,
JP will report directly to the Company's Board of Directors.
STAFFING
Xxxxxxxx X. Xxxxxxxx will be the principal responsible for the overall
engagement. He will be assisted by a staff of consultants at various levels, all
of whom have a wide range of skills and abilities related to this type of
assignment. If JP concludes that an independent contractor is appropriate to the
assignment, JP will obtain the Board's consent (or such other individual or
committee as may be designated by the Board) before doing so; it is agreed,
however, that such consent will not be unreasonably withheld.
TIMING, FEES AND EXPENSES
JP will commence this engagement immediately upon receipt of a signed engagement
letter. This engagement will remain in effect unless terminated in the manner
set forth below under "Termination and Survival."
FEES. In the performance of services under this agreement, JP will be paid a fee
of $250,000 per year, payable in advance in quarterly installments, with the
first such installment due on the date of this agreement.
OUT-OF-POCKET CASH EXPENSES. In addition to the fees set forth above, the
Company will pay directly or reimburse JP, upon receipt of periodic xxxxxxxx,
for all reasonable out-of-pocket expenses incurred in connection with this
assignment such as travel, lodging, postage, telephone and facsimile charges.
EQUITY
As additional consideration to JP's agreement to provide the services
contemplated under this engagement and to provide incentive with regard to such
performance, the Company will, subject to shareholder approval, give JP (or its
affiliates) the option to acquire from the Company (a) within 21 days after the
date shareholder approval is obtained, up to 294,117 shares of the Company's
common stock at an option exercise price of $8.50 per share (the "Initial Option
Price"), and (b) at any time after the date shareholder approval is obtained
during the two-year period commencing on the date of this agreement, up to
263,158 shares of the Company's common stock at an option exercise price of
$9.50 per share (the "Second Option Price"). The Initial Option Price represents
a per share price equal to approximately 120% of the average of the closing sale
prices for the Company's common stock on the NASDAQ National Market System for
the 30-day period ending on June 21, 2000. The Second Option Price represents a
per share price equal to approximately 133% of such 30-day average
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closing sale price. To exercise either option, JP will provide the Company with
written notice of such option exercise within the applicable time period,
together with the aggregate option exercise price equal to the number of shares
then being acquired multiplied by the Initial Option Price or the Second Option
Price, as the case may be.
It is further acknowledged that JP may acquire additional shares of the
Company's common stock in the open market or in private transactions, subject to
all applicable securities law rules and regulations; provided that, during the
two-year period commencing on the date of this agreement, JP agrees that it (and
its affiliates) will not acquire any such shares, in one or more transactions,
(i) having an aggregate purchase price in excess of $2,500,000 or (ii) at the
same time the Company is engaging in a share repurchase program.
With regard to shares of the Company's common stock which JP (or its affiliates)
may acquire during the two-year period commencing on the date of this agreement,
whether pursuant to the exercise of the foregoing options or pursuant to
purchases of the type described in the immediately preceding paragraph, JP will
be given the same registration rights, subject to the same terms and conditions,
as were granted to Childcare Associates and KD Partners II (the "KD Holders")
pursuant to Article IV of the Shareholders Agreement dated as of July 9, 1990,
as amended, among KD Acquisition Corporation, the KD Holders and GCC Partners,
Ltd., except: (i) with respect to its right to request registration under
Section 4.1 thereof, (a) JP will have only one such right to request
registration of its shares (other than with respect to a "piggy-back
registration" request), (b) such right may only be exercised if both purchase
options granted above have been exercised in full, and (c) such demand must
cover at least 25% of the shares of Childtime common stock then owned by JP; and
(ii) all registration rights granted to JP under this agreement will terminate
upon the seventh anniversary of the date of this agreement. A copy of Article IV
of the Shareholders Agreement and related sections are attached as Schedule A to
this agreement.
RELATIONSHIP OF THE PARTIES
The parties intend that an independent contractor relationship will be created
by this agreement. JP is not to be considered an employee or agent of the
Company and the employees of JP are not entitled to any of the benefits that the
Company provides for the Company's employees.
The Company acknowledges that it is hiring JP to assist and advise the Company
in business planning and management. JP's engagement will not constitute an
audit, review or compilation, or any other type of financial statement reporting
engagement that is subject to the rules of the AICPA or other such state or
national professional bodies.
The engagement of JP under this letter agreement will have no impact on the
status of Xxxxxxxx Xxxxxxxx as a director of the Company (or any remuneration
provided to Xx. Xxxxxxxx as director). It is understood and agreed that the acts
of Xx. Xxxxxxxx pursuant to this agreement are not acts by him in his capacity
as director.
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CONFIDENTIALITY
JP agrees to keep confidential all information obtained from the Company. JP
agrees that neither it nor its directors, officers, partners, employees, agents
or attorneys will disclose to any other person or entity, or use for any purpose
other than specified herein, any information pertaining to the Company or any
affiliate thereof which is either non-public, confidential or proprietary in
nature ("Information") which it obtains or is given access to during the
performance of the services provided hereunder. JP may make reasonable
disclosures of Information to third parties in connection with its performance
of its obligations and assignments hereunder. In addition, JP will have the
right to disclose to others in the normal course of business its involvement
with the Company.
Information includes data, plans, reports, schedules, drawings, accounts,
records, calculations, specifications, flow sheets, computer programs, source or
object codes, results, models, or any work product relating to the business of
the Company, its subsidiaries, distributors, affiliates, vendors, customers,
employees, contractors and consultants.
Notwithstanding the foregoing, neither confidential treatment nor the
restrictions set forth in the preceding paragraphs of this section on
"Confidentiality" will apply to: (a) information which is or becomes generally
available to the public; (b) information already received on a non-confidential
basis by JP prior to the date hereof; (c) information received in the future
from a third party on a non-confidential basis; provided that such third party
was not induced by JP to disclose such information in violation of any
applicable confidentiality agreement or covenant with respect to such
information inuring to the benefit of the Company; (d) information independently
developed by an employee or agent of JP not having access to the Company's
proprietary information; (e) information released from its confidential status
by prior written consent of the Company; or (f) information required to be
disclosed pursuant to any subpoena or other legal process or applicable law;
provided that in the event that JP (or any of its directors, officers, partners,
employees, agents or attorneys) receives a subpoena or other validly issued
administrative or judicial process requesting Information, JP will provide the
Company with (a) prompt written notice of such request so that the Company may
seek an appropriate protective order or other remedy and (b) reasonable
cooperation to assist the Company for such purpose. In the event that a
protective order or other remedy is not obtained, JP agrees to furnish only that
portion of the Information which counsel advises that it is legally required to
furnish and will exercise reasonable efforts to obtain reliable assurances that
confidential treatment is afforded to the Information that is disclosed.
The Company acknowledges that all advice (written or oral) given by JP to the
Company in connection with JP's engagement is intended solely for the benefit
and use of the Company (limited to its management and employees) in considering
the transactions to which it relates. This agreement will survive the
termination of the engagement.
INDEMNIFICATION
In consideration of JP's agreement to act on behalf of the Company in connection
with this
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engagement, the Company agrees to indemnify, hold harmless, and defend JP
(including its directors, officers, partners, employees and agents) from and
against all claims, liabilities, losses, damages and reasonable expenses as they
are incurred, including reasonable legal fees and disbursements of counsel,
relating to or arising out of the engagement, including any legal proceeding in
which JP may be required or agree to participate but in which JP is not a party.
In connection with any of the matters to which this "Indemnification" Section
relates, JP agrees that the Company would have the right to control the defense
of any such matter and neither JP, nor its directors, officers, principals,
employees or agents, will settle any claim without the Company's prior written
consent. This indemnification obligation does not apply to gross negligence,
intentional misconduct or bad faith.
TERMINATION AND SURVIVAL
This agreement may be terminated at any time by written notice by one party to
the other; provided, however, that notwithstanding such termination JP will be
entitled to any fees and expenses due under the provisions of this agreement. It
is further understood and agreed that unless a party acts in bad faith or has
not remained current with its obligations under this agreement, the other party
will not terminate the engagement without providing at least six months' prior
written notice.
The obligations of the parties under the "Equity," "Confidentiality,"
"Indemnification" and "Termination and Survival" sections of this agreement will
survive the termination of the agreement as well as any other section of this
agreement which expressly provides that it will survive termination of this
agreement.
MISCELLANEOUS
GOVERNING LAW. This letter agreement is governed by and construed in accordance
with the laws of Michigan with respect to contracts made and to be performed
entirely therein and without regard to choice of law or principles thereof.
SEVERABILITY. If any portion of the letter agreement shall be determined to be
invalid or unenforceable, we each agree that the remainder shall be valid and
enforceable to the maximum extent possible.
ENTIRE AGREEMENT. All of the above contains the entire understanding of the
parties relating to the services to be rendered by JP for the benefit of the
Company and may not be amended or modified in any respect except in writing
signed by the parties. JP will not be responsible for performing any services
not specifically described in this letter or in a subsequent writing signed by
the parties.
NOTICES. All notices required or permitted to be delivered under this letter
agreement will be sent, if to us, to the address set forth at the head of this
letter, to the attention of Xx. Xxxxxxxx X. Xxxxxxxx, and if to you, to the
address for you set forth above, to the attention of the President, or to such
other name or address as may be given in writing to the other party. All
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notices under the agreement will be sufficient if delivered by facsimile or
overnight mail. Any notice will be deemed to be given only upon actual receipt.
If these terms meet with your approval, please sign and return the enclosed copy
of this letter.
Sincerely yours,
XXXXXXXX PARTNERS
By:/s/Xxxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxxx, Managing
General Partner
Acknowledged and Agreed to:
CHILDTIME LEARNING CENTERS, INC.
By:/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President and
Chief Executive Officer
